Ashby v Commonwealth of Australia (No 2) [2012] FCA 766

Ashby v Commonwealth of Australia (No 2) [2012] FCA 766

Journalist's privilege under s 126H(1) applies only where the informant's identity as source of particular information has not already been disclosed or is not ascertainable as such; if the identity has been revealed, the privilege does not prevent compellability to produce documents confirming it. Both parties' constructions were rejected, and Mr Lewis must respond to the subpoena consistently with the correct interpretation of privilege.

Jurisdiction
Australia
Judgment Date
13 July 2012
Procedural Posture
Interlocutory Application / Ruling on Privilege Assertion and Subpoena
Outcome
interlocutory application dismissed; subpoena stood over for journalist to reconsider privilege assertion
Legal Topics
["journalist's Privilege" 'subpoena' 'compellability' 'confidential Sources']
['evidence Law' 'employment Law'] ["journalist's Privilege" 'subpoena' 'compellability' 'confidential Sources']

Case Brief

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Procedural Posture

Interlocutory Application / Ruling on Privilege Assertion and Subpoena

Legal Issues

  1. 1 ["Whether journalist's privilege under s 126H(1) of the Evidence Act 1995 (Cth) prevents compellability to produce a document that would disclose or enable to be ascertained the identity of a confidential source in answer to a subpoena"]

Ratio Decidendi

Journalist's privilege under s 126H(1) applies only where the informant's identity as source of particular information has not already been disclosed or is not ascertainable as such; if the identity has been revealed, the privilege does not prevent compellability to produce documents confirming it. Both parties' constructions were rejected, and Mr Lewis must respond to the subpoena consistently with the correct interpretation of privilege.

Court Disposition

interlocutory application dismissed; subpoena stood over for journalist to reconsider privilege assertion

Orders

  • ['The interlocutory application filed by Steve Lewis on 2 July 2012 be dismissed.' 'The subpoena issued to Steve Lewis on 18 June 2012 stand over until 9:30 am on 20 July 2012.']